A: I don't know that I have a good answer to that. It's obviously a very efficient communications vehicle and a way to access a lot of information quickly. What that will be used for, I think, remains to be seen.

GOVERNANCE: Does the Internet Need Governance?

Q: Is a formal governance structure a necessary component of the development of the internet?

A: I doubt it. What has grown so far has grown without any kind of governance and it's not clear to me that there's any need for it in the future.

GOVERNANCE: Defining Governance

Q: Define governance.

A: I would define governance as some form of regulation of the uses put to and the users of the internet. Ranging from who gets access to it, to what kinds of content is available under what circumstances, to what legal rules apply on some kind of a generic basis.

GOVERNANCE: Is ICANN Governance?

Q: Under that definition is ICANN a formal governance structure?

A: No. … It doesn't meet any of those standards. ICANN has nothing to say about who gets access to the internet. It has nothing to say about who can post content on the internet. Has nothing to say about the legal rules that will apply to activity undertaken on the internet. The only thing that ICANN does that can even remotely be argued to fall within the governance structure would be it's dispute resolution policy, and its dispute resolution policy is specifically stated to be supplementary to and secondary to any court decisions that are rendered with regard to any dispute. So ICANN was never intended to be and has been pretty carefully structured so that it is not a governance structure notwithstanding the efforts of some people to do it differently.

ICANN: ICANN as an Administrative Body

Q: What would you characterize it as?

A: It's an administrative body. It's a body that has the responsibility for making sure that the infrastructure which supports the internet works efficiently and smoothly. It, as a result, tries to promote and is intended to promote, and will if it works correctly, stability of the infrastructure that supports the internet. And it is specifically designed to have that happen through private sector consensus as opposed to governmental action, either by individual governments or by some multi-national governmental body. So it is not only not governance, it is specifically intended to prevent or lessen the need for governance.

Q: What do you say to those who seem to argue that what may have been conceived of as an administrative body, as it becomes more institutionalized and has a longer history will tend to take on a direct governance role?

A: Well, I say anything is possible. But it hasn't happened yet and there are significant interests and forces that will make that difficult.

ICANN: Limits on ICANN’s Authority

Q: Such as?

A: Well, to start with, the fact that we don't have any armies and without the ability to coerce compliance it's very difficult to govern. Obviously the people who do have the armies are the other governments of the world.

Q: But there is some power ... There does seem to be some opportunity for ICANN to sanction by assignment of IP addresses.

A: Well, first of all ICANN doesn't assign actual IP addresses. So we can't do anything with respect to that. All ICANN does is allocate blocks of numbers to IP registries who then assign to large users, whether they be ISPs or companies, blocks of addresses who then assign them to individual computers or individual users. So ICANN is not involved in that process at all.

Q: But you do control which registries are recognized.

A: Well, it's not even clear that we control that. First of all, we don't control any of that right now because the U.S. government still maintains all of those controls. But assuming the completion of the transition process (it'll be easier to use that as the basis for the discussion), even then it's not clear that ICANN has any "control" over that. It's coercive capacity with respect to the IP registries would be to refuse to give to them any more blocks of numbers. Then if we did that one of two general things would happen. Either they would comply with whatever rules we thought they were violating, or they would tell us to go get stuffed and turn to their members who are after all all the large ISPs in the world and say that ICANN is off the reservation and you should ignore them and we'll be assigning our own numbers from hereon out. …

It's not like we have these numbers in a closet someplace. The only reason that ICANN can assign these numbers is because the world internet community recognizes it as the authority from which these numbers come. As soon as that recognition goes away, we have no power whatsoever. So the concept that ICANN actually owns something or controls something is what underlies [concerns from] those people who raise these issues [and] who are honestly raising them as opposed to the people who … have their own agendas. And they're just wrong because we don't own any of those things, we'll never own any of those things, and we'll continue to have influence only to the extent that the world internet community wants us to. And as soon as they decide that we're off the reservation someplace, they'll go away and do something with somebody else.

ICANN: ICANN as Plumber

Q: What do you think the Domain Name System should look like in 10 years and how can ICANN help?

A: I have no idea what it's going to look like, and if ICANN is doing what it's supposed to be doing, it shouldn't help shape it at all. That'll be a result of all the forces that interact on the internet, and ICANN really isn't or shouldn't be one of those. We're the guys who keep the plumbing from being clogged. That's our only job. We have no jobs other than that although I'm quite sure that there will be all sorts of people who will want us to do other jobs from time to time. Hopefully they won't succeed. And if they don't and if we stick to just doing the plumbing, we shouldn't have any influence on those more cosmic matters at all.

Q: So as a normative matter, do you have a view of what it should look like?

A: It should be exactly what it's set out to be. It should be the plumbing organization. I think it's awfully hard to imagine how this kind of a structure … of bottom-up consensus, global non-profit, non-governmental structure, it's awfully hard to see how that could really take on a positive governance role. You know, the United Nations is a pretty unwieldy body, but it's at least an organization made up of governments which actually do have control over pieces of the world, one way or the other. By comparison, ICANN is a hell of a lot more unwieldy than the United Nations is, and I just don't see how it's likely that we could, even if we wanted to and even if there was some general consensus around the world that we should, I don't think it's likely that we could effectively manage a true regulatory system. A regulatory system is almost by definition top-down. Our system is set up to be bottoms-up. Bottoms-up is a pretty damn inefficient way to come up with anything. And so it's hard to imagine us being an effective regulator or governor with our current system.

CONSENSUS: Defining Consensus

Q: Speaking of consensus, can you define that term?

A: It's something less than unanimity and something more than a bare plurality. It's not a voting concept. So 50.1 isn't what you're looking for. But obviously you're not looking for unanimity. The IETF definition of "rough consensus" assumes that there will be some voices out there arguing against the result, but those voices are wildly outnumbered. So does that make it 75%? 80%? 85%? 90%? Who knows? And I think the fact of the matter is, especially in our context, consensus will be broad enough support from enough of the members of the internet community to actually implement a policy. If ICANN goes out and seeks to implement a policy and there is not a consensus behind it, it won't happen. And so if it happens, if it in fact implements the policy, then I think it would be fair to say that it has consensus support. But you're probably not going to know that for absolute certain on any policy until you try to implement it.

CONSENSUS: As Applied

Q: Can you think of any major policy initiatives recently that ICANN found it didn't have consensus on?

A: Well, first of all there haven't been that many so it's a pretty short list to look at. No, I think the only one that would be arguable would be the initial funding mechanism, where if you want to count the United States Congress, we clearly didn't have their consensus. But with that exception I don't think ICANN has in fact implemented anything that didn't have consensus support because there's been nothing that it implemented that blew up in its face which would be, I think, the best test of that.

Q: So it almost sounds as if things are in reverse, almost. You know if you have consensus once you implement something.

A: I don't know how else you'd test it. Again, if you had a system where everybody had joined up and bound themselves to abide by the will of the majority, or even a supermajority, but a specified supermajority, then you'd know what the rules were. If you got the majority or supermajority vote then that was the rule and people were bound by it and they didn't have a choice so that was it. But we don't have that system. We don't have a system where people have agreed to bind themselves to anything other than a determination by the ICANN board following a specified process that there is consensus support for a particular initiative. And I'm quite confident that over the years there are going to be some occasions where the ICANN board goes through that process and concludes that there is in fact a consensus and implements a policy and one of two things happens: either somebody's going to sue in some court in some country saying that ICANN in fact said that this was a consensus but it didn't follow this, this, or this piece of its rules and processes so it's ultravirous, it's not truly a consensus policy. Therefore we don't have to follow it. Or the policy is going to be announced and implemented and a bunch of people are simply not going to follow it, in which case it's going to fail. Surely one of those two things is going to happen at some point in the future. That'll be, in either case, a big problem at that point because it will have isolated a situation where the ICANN process didn't work.

Now, hopefully we can minimize the occurrence of those occasions by doing the process right, but I think that' really about the only time that you're going to be able to determine that there is not a consensus. And again, when you're talking about an environment in which people voluntarily agree to abide by this, or they don't even agree - they just voluntarily abide by it or they don't. You know, you sort of have to look at results to see whether or not the ICANN board read the population right. Now, if we end up with contracts, as we would like to end up with, with a large number of internet actors, such as the one we have with NSI, which go into more detail in defining for the purpose of that contract what the definition of consensus will be (as the NSI contract does), or if those provisions are ultimately embodied in the ICANN bylaws so that they become institutionalized, then maybe it will be easier to tell as we go through the process.

ICANN: Board Elections

Q: Can I pick up on one incident that's caught a lot of attention on the Names list in our class and seems to be a real point of debate even though it's hard to pick out from that debate what actually happened. It relates to what you were saying about ICANN's need to do the process right and have a better chance of having the internet community on board. And that relates to the board elections. Can you give us your version of what happened there.

A: I can tell you exactly what happened because I think I'm the only person alive who actually knows exactly what happened since Jon Postel is now dead. We're talking about creating something from nothing. You know there was no ICANN, there was no … recognizable constituencies, there certainly were no subordinate entities that were producing this. And so we're talking about creating something from nothing. If you look around the world and see how non-profit organizations get created from nothing, they get created in exactly the way we did. You come up with a concept, you come up with a set of bylaws, you come up with some initial incorporators, you incorporate the thing, then from that, in most non-profit circumstances, the board is self-perpetuating. They add new people or subtract people on their own. In our situation because we were trying to reflect, because Jon was trying to reflect what he read as the consensus of the community, in creating the structure and bylaws of the organization we put out six or seven iterations of that over time, each time trying to reflect the reactions that people had to the last set as best we could read them. And for the initial board members we solicited recommendations from the world; everybody, anybody. And we got, literally, hundreds of suggestions, and then we sorted through those in a variety of ways. One, we were able to eliminate a bunch of people on our own because we came to a conclusion (and I have to admit this was unilateral on our part)…

Q: Who is "we"?

A: Jon Postel. Actually I say "we," but I should say Jon Postel because I was working for him. He came to the conclusion that it would be silly and counter-productive to have an initial board made up of the combatants because the likelihood was that they would continue their combat on the board and so he determined that the initial board ought to be people who were not active combatants in the wars leading up to the creation of ICANN. So that was the one unilateral decision that was made. So we cut out all the active combatants that people had recommended, and that left us with you know a fairly long list of people who had not been active combatants. And with those we asked everybody who we could find to give us their reactions to them. Do you know this person? Do you like this person? Are they any good? Would they be interested, etc. So over time winnowed the list down to a manageable number and started approaching people and got turned down by a number of people. And had a number of other people say they were willing to do that and finally, I think actually the day before the ICANN proposal was turned into the Department of Commerce, got our last person to agree to be on the initial board and put forth a slate, and again with the notion that (this was Jon's belief) this group of people would attract consensus support from the internet community. And in fact I think it's almost completely impossible to argue now, although I know there are still some who do, that that was incorrect because if you talk to people out in the community today, the biggest point they make about the board is that they're very concerned about seeing this group of board members go away and worry about who's going to replace them. Because this board has in fact attracted very broad support from the community.

Q: Two clarifying questions. ... The first being at what point did Postel's death happen in this process?

A: It happened … Postel suffered his heart attack three or four days before we turned in the proposal to the Commerce Department. So the last board member was somebody that Postel had asked but we didn't get his answer until after Postel had had his heart attack. Now he did not die right away. He was in intensive care for three or four days or maybe a week or so, and then came out of intensive care and was thought to be on the road to full recovery, and in fact suffered his ultimate attack which killed him instantly when he was sitting up in the hospital room talking to his family, everybody thinking that he was just fine. So that happened about two or three weeks later.

PERSONAL BACKGROUND IN INTERNET ISSUES

Q: The other clarifying question is just, if you would, describe your background and coming to work for Postel and how you ended up where you are today.

A: It was one of these weird serendipitous things. I'm an antitrust lawyer by experience and within my firm, for reasons that are completely obscure, I've had some responsibility for our technology practice generally, now for the past five years or so. Jon Postel decided, I think in April of '98, when he had a pretty good idea of what the U.S. government was likely to do when it ultimately produced what was called the White Paper, he decided that he needed some legal assistance. I think his perception was that he needed people to help him draft things. And he needed people to help him deal with Washington issues, because it was his perception that it was Washington problems that had derailed the last time he had tried to do this, which was the gTLD-MoU effort. And so he sent out an e-mail to about 8 or 10 law firms that he had researched, heaven only knows how, and concluded met his specifications, which were corporate experience, antitrust experience and international offices. And we responded to that.

Simply, it came to me because of my firm responsibilities. I looked at it, had no clue who Postel was, had no idea about any of this was, had never heard of the domain name system, quite frankly, and thought this looks kind of interesting, let's talk to the guy. We talked to the guy, and if you talked to the guy you were immediately pretty impressed by him, and decided that we would provide some pro bono assistance to him because it didn't look like it would be that big a deal and it looked like it would be kind of interesting. So I told my managing partner that I didn't know how much this would cost, but I thought maybe, you know if we got extreme, maybe $100,000 worth of legal time. Ended up being well over a million dollars worth of legal time, but we didn't anticipate that at the beginning. And of course once you’re in it you really can't get out of it, so we just stuck through with it. And once Jon died, we really felt a responsibility to make it happen because, while I don't think you could say that his death was due to this, it's certain that the stress and strain of trying to put this together obviously wasn't helpful to him. So we stuck with it after that, more out of an obligation to him than anything else.

ICANN: The Role of The Berkman Center

Q: Another subsidiary point to the question of legal research and representation on ICANN matters. What's the relationship of the Berkman Center to ICANN?

A: The Berkman Center got into this game, it may have done before the White Paper, but after I became aware of what was happening. They got into this simply because they were interested in the issues, as best I could tell. And Jon Zittrain started coming to the various meetings that were held to discuss the White Paper and the formation of ICANN. And then over time Berkman started offering more and more resources and I think, to some extent like a lot of the rest of us, sort of got sucked into a bigger role than it had in mind in the beginning and became a resource for the community as a whole. And then got more length even than it was because several of the people who were Berkman affiliated, starting with Molly Shaffer Van Houweling, who was a Berkman fellow, and then Andrew McLaughlin, became part-time employees of ICANN, and in Andrew's case pretty close to a full-time employee now. And so that connection was even broader. My guess is that if you talk to Jon and others at Berkman, they would say that they put a lot more time and effort into this than they had anticipated and probably spent more money than they had anticipated but that was true of a lot of us.

GOVERNANCE: Query to Those Worried About ICANN as Governance

Q: ... I think we have enough to go on for now. We may when talking to other people have things that it's only fair to let you respond to. …

A: I think that, as you will see if you haven't already, from talking through this that there's a whole range of views on some of these issues but to the extent that you talk to those who are worried about the governance issue here, you should press them to have them explain why they think this has governance implications either now or in the future, because sometimes they're a little fuzzy on that.